Let’s Not Forget the H-4 EAD Issue!

In a letter dated, April 4, 2018, the Director of the USCIS ( Director Lee Francis Cissna was detailed to Chairman Chuck Grassley’s staff at the Senate Judiciary Committee from 2015 until earlier this year) outlined regulatory changes to the H-4 EAD program:

With regard to regulations, our plans include proposing regulatory changes to remove H-4 dependent spouses from the class of aliens eligible for employment authorization, thereby reversing the 2015 final rule that granted such eligibility.

The H-4 EAD is not available to all H-4 dependents. There are certain threshold qualifying criteria that need to be fulfilled before one becomes eligible for an EAD. Among other things, the H-1B spouse must have, either a labor certification application that has been pending for over 365 days, or an approved immigrant petition. In most instances, the eligible applicant is from a country where there is a severe immigration backlog. Oftentimes, applicants must wait anywhere from 15 to 20 years before they can become permanent residents.

If eliminated, the H-4 EAD program would affect thousands. Far from being monolithic, the H-4 EAD issue involves extraordinary complexity. It would be a tragedy to see it disappear. I came across a few scenarios that were extremely legitimate and deserving:

Earlier this year, I spoke with a wonderful couple from India. Amit, is on an H-1B and his immigrant petition has recently been approved; Ruchi is a qualified doctor from India and had given up a very lucrative clinical practice to follow her husband to the U.S. As we got talking, she told me that she was frustrated with not being able to secure a residency program of her choice unless she had an employment authorization document. We immediately filed the Application and she is now ready to commence a residency program in June. Unfortunately, eliminating the H-4 EAD would render Ruchi incapable of completing her residency.

Huan (Yvonne) is from China. Her husband Hahn is currently waiting for his priority date to become current. Yvonne was an acupuncturist in Shanghai and had been itching to get back to practicing. Last year, she attended a naturopathic conference in Phoenix and made several connections. Specifically, a medical group wanted to use her services as part of their pain management practice. We filed an obtained an H-4 EAD for her to commence employment with the Group. Yvonne thought the H-4 EAD was godsend and is now working her magic with patients trying acupuncture as an alternative to opioids. In a nation beset with problems caused by addiction to prescription medication, her services would be invaluable. It would be a tragedy is she is unable to continue working.

Megha is a big data scientist and works for a very large marketing and analytics company on the West Coast. She came to the U.S. on a student visa in 1999. She got her first H-1B sometime in 2012 and has been working at various companies. She got married to Ravi, her colleague (also on an H-1B) in 2015. It never occurred to Megha that she was running out of time on the H-1B. She faced the possibility of having to stop working when she maxed out on time. Therefore, it was extremely fortunate that Ravi’s employer had filed an immigrant petition that was approved just in time; she was able to switch to the H-4 EAD and continue working for her employer. In Megha’s case, it would take approximately 15 plus years before she becomes eligible for permanent residency!

The H-4 EAD is a limited option for a select few H-4 dependent spouses. It does not extend to children. The H-4 EAD also does not permit continued employment if the underlying H-1B/H4 visa is not extended. The majority of H-4 EAD beneficiaries, statistics show, are women and that only a little over 100,000 have received the card since the program was implemented in 2015. It is also evident that the program is mainly used by nonimmigrants from India and China.

The benefits of the program including retention of global talent far outweigh the minimal benefit its cancellation is likely to offer the U.S. economy and more specifically contribute to saving U.S. jobs. In fact, several industry organizations committed to growing the U.S. economy support the program. Why then is the current administration trying so hard to cull it? One can only assume that meaningful immigration reform has given way to prejudice and a rush to close every avenue of immigration currently available.

Let us not give into our fears, but instead balance our priorities by reexamining the real issue here.